Steve Peers

The recent surge in support for pro-independence parties in Catalonia has revived discussions about the connection between EU law and independence movements within member states. This issue was previously discussed in the context of the Scottish independence referendum, but it’s worth revisiting now. There are three interconnected questions: Firstly, what happens if a region within a member state declares independence unilaterally, a potential scenario in Catalonia? Secondly, if a newly independent state, formerly part of an EU member, seeks continued EU membership, what are the implications? Lastly, should the EU establish a policy on this matter, and if so, what should it entail? This analysis focuses solely on the legal ramifications within the framework of EU law and does not express an opinion on the merits or drawbacks of secession for Scotland, Catalonia, or any other region.

What happens in the event of a unilateral declaration of independence (UDI)?

The possibility of a UDI in Catalonia distinguishes it from the situation in Scotland, where the referendum was sanctioned by the UK government with a pledge to honor the outcome. However, it’s conceivable that Scotland might consider a UDI in the future, as might other regions within EU member states. It’s important to distinguish between situations where the existing member state is also leaving the EU and instances where it is not.

The foundation of EU law is articulated in Article 4 of the Treaty on European Union: the EU must respect the “national identities” of its member states, which are “inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” Furthermore, the EU must uphold the member states’ commitment to ensuring their “territorial integrity.” Notably, there is no corresponding reference to self-determination at the sub-national level. Regional governance is framed as an element of existing member states’ national identities rather than a model for a separate “demos.”

Consequently, the EU lacks the legal standing to acknowledge a UDI until the existing member state reaches an agreement with the seceding authorities to recognize their emerging statehood. The procedure and specifics of such an agreement are entirely subject to national law. While independence-minded Catalans might be dissatisfied that the Spanish government hasn’t explicitly addressed potential independence as the British government did, it remains solely within the purview of the Spanish legal and political system to determine the course of action in this regard. This principle applies reciprocally: the EU should not meddle in the UK’s willingness to entertain Scottish independence, even if certain member states harbor concerns about their own independence movements.

This assumes Catalonia would aim to remain in the EU after a UDI, although the reasoning applies to any self-proclaimed new state seeking to leave the EU post-UDI.

However, different considerations arise if a member state is in the process of leaving the EU and a region within that state seeks to break away and remain an EU member (a plausible scenario in Scotland post-“Brexit”). In such cases, the departing member state will soon relinquish the safeguards of EU law concerning its national identity and territorial integrity. Consequently, the established principles of self-determination under international law, whatever their precise interpretation, would come into play. Legally, the EU would have the option to recognize any UDI. However, this remains merely an option. Politically, some member states might oppose EU recognition of a UDI, fearing it could encourage separatist movements within their own borders, despite the distinct legal context.

Recognizing a new state

What transpires if the original member state, like the UK last year, is amenable to accepting the independence of a portion of its territory? This primarily pertains to situations where the newly formed state wishes to remain in the EU. If the new state prefers to leave the EU, it could, based on the following rationale, do so without invoking the formal withdrawal procedure outlined in Article 50 of the Treaty on European Union.

Summarizing the argument previously made regarding Scotland (acknowledging the existence of differing perspectives on these matters), the new state does not automatically attain EU membership, as member states are explicitly listed in the EU treaties. Therefore, a treaty amendment is required to incorporate new members, even those formerly part of existing member states. Article 49 of the Treaty on European Union outlines the process for admitting new members, entailing the negotiation of an Accession Treaty between existing and prospective members. However, the accession process could be expedited, given that EU law already applies within the new state. Alternatively, the Accession Treaty could be provisionally applied or existing members could bypass Article 49 by amending the treaties through the standard procedure (Article 48 of the Treaty on European Union) to create a special provision for accelerated EU membership for the new state.

Politically, some member states might be hesitant to accept a new member state under these circumstances or might resist expediting the membership process, fearing it would embolden separatist factions within their own countries.

Does the EU need a policy on independence movements?

The EU, as part of its external relations policy, must address declarations of independence by breakaway states, as seen in cases like Kosovo, East Timor, and South Sudan. However, it doesn’t necessarily follow that EU involvement in such matters within member states is prudent. As previously discussed, a legal principle prevents the EU from endorsing secession in instances of UDI. Moreover, EU involvement would be an unwise policy move. Even when separation from the original member state is mutually agreed upon, it would be ill-advised for the EU to intervene before key domestic issues concerning independence have been internally resolved.

This exemplifies an issue best left to the discretion of each member state as a matter of principle. Any legitimacy the EU gains by supporting one side in an independence dispute would be negated with the opposing side. While separatist movements might seek EU support, the EU should maintain neutrality and allow them to win their case, if possible, at the national level.

Although EU law, for the reasons outlined, inherently favors the status quo in independence situations, a policy would be needed if secession from a member state occurred with its consent. In such instances, the EU should, as a rule, respect both the member state’s willingness to accept secession (as an expression of respect for national identity) and the citizens’ decision in the newly formed state to secede and join the EU (as a demonstration of respect for democracy). Therefore, it would be fitting, though not legally mandatory, to facilitate the new state’s EU entry, if sought, as swiftly and efficiently as possible.

While the EU should emphasize a case-by-case approach to avoid the perception of interfering in the domestic affairs of other member states by encouraging separatism, such encouragement might occur regardless. Therefore, despite the compelling argument that EU membership for newly independent regions of existing member states should be streamlined, the process might not be smooth in practice.

Photo credit:  http://designseye.blogspot.co.uk/2013/06/happy-161-antoni-gaudi.html